"This document was published prior to the publication of OSHA's final rule on Ergonomics Program (29 CFR 1910.900, November 14, 2000), and therefore does not necessarily address or reflect the provisions set forth in the final standard."
ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
THE SUBCOMMITTEE ON EMPLOYMENT, SAFETY, AND TRAINING
SENATE HEALTH, EDUCATION, LABOR AND PENSIONS COMMITTEE
April 27, 2000
Mr. Chairman, members of the Subcommittee, thank you for inviting me to testify about the Occupational Safety and Health Administration's proposed ergonomics program standard. I welcome this opportunity to discuss the problem of work-related musculoskeletal disorders, also known as MSDs, and the standard OSHA has proposed to address this major public health issue. I am also pleased to respond to your invitation to address the proposed standard's work restriction protection provisions.
Work-related musculoskeletal disorders are the most widespread occupational health hazard facing our Nation today. Nearly two million workers suffer work-related musculoskeletal disorders every year, and about 600,000 lose time from work as a result. Although the median number of lost workdays associated with these incidents is seven days, the most severe injuries can put people out of work for months and even permanently disable them. In addition, $1 of every $3 spent on workers' compensation stems from insufficient ergonomic protection. The direct costs attributable to MSDs are $15 to $20 billion per year, with total annual costs reaching $45 to $54 billion.
OSHA has spent 10 years studying this issue, analyzing evidence, reviewing data, talking to stakeholders, and discussing ideas and options. It is now time to act.
The human dimension of this problem is striking. This debate is about real people confronting real risks to their livelihood, health and well-being. Ursula Stafford is a 24-year-old paraprofessional for the New York City school district. Ms. Stafford was assigned to assist a paralyzed student who used a wheelchair. The student weighed 250 pounds and Ursula weighed 122. She received no training on how to lift the student (which was required, for example, to help the student go to the bathroom), nor did her employer provide any lifting equipment. Ursula worked only two days before seriously injuring her back on the third day. She had a herniated disc and spasms in her neck. Today she wears a back brace, endures constant pain and has been told that she may never be able to have children because her back may not be able to support the weight. Compounding this tragedy is the fact that Ursula's predecessor was similarly injured and became permanently disabled. Under the requirements of OSHA's proposal, Ursula's employer would have been required to fix the job after the first injury occurred. Ursula might never have been hurt.
Then there is Walter Frazier, a 41-year-old poultry worker, who has undergone four surgeries on his hands and wrists. For nearly nine years, Walter worked as a "live-hanger" in a chicken processing plant. An admittedly nasty job, live-hanging is simple in concept. Ten to twelve people stand beside a processing line, stretch over a barrier bar designed to contain the often-flapping chickens, grab the chickens by the legs, and then stretch upward while twisting to hang the chickens on fast-moving overhead shackles. Walter repeated this process about once every three seconds-that's about 10,000 times a day, 50,000 times a week, 2.5 million times a year.
Walter felt the initial pains in his hands shortly after beginning to work at the plant. Through the years his pain has intensified while his health has diminished. Finally, in 1998, barely able to lift 20 pounds and unable to perform many daily household chores, he agreed with his doctor's recommendations and had the first of four surgeries in an attempt to repair his damaged hands. In addition to severe hand problems, Walter has lower back pain and severe and chronic arthritis in his hands and shoulders. "My doctor told me I can't do this job anymore. My body's overworked, and I can't do this any further."
Many other workers have written us to express support for ergonomics regulation. One put it like this: "I'm an ultrasonographer who has recently been fired from my job because I had to be out with an MSD. I probably would have never had this problem if there were an ergonomics standard present in my workplace."
Another worker who lost her job was Mary, a nurse, who sustained a back injury and had to work on light duty for a year. Then her hospital told her to find another job because they did not have anything for her to do. Today she works at different part-time jobs in different locations and can no longer provide patient care. And there's Debra Teske, a customer service representative, diagnosed with bilateral carpal tunnel syndrome that required surgery on her right hand. Today, she has difficulty cooking, cleaning and picking up small objects. She can no longer kayak or bike, hobbies that she once enjoyed.
Beth Piknick is a registered nurse and also knows firsthand the importance of OSHA's proposed ergonomics program standard. While working as an ICU nurse, she suffered a career-ending back injury that was devastating, both personally and professionally. Throughout her career, Ms. Piknick helped patients move from their beds to chairs and back. Twisting, bending, pulling and pushing were all part of the job. She never had any back problems. But on February 17, 1992, while helping move a patient, Beth severely injured her back. Physicians, surgeons, and physical therapists were not able to relieve the constant pain. Finally, two years after the injury Beth had spinal fusion surgery coupled with a major rehabilitation program. She was willing to endure whatever pain it took to return to the job she loved. Despite the surgery and the physical therapy, however, she cannot return to her job. Before her injury, Ms. Piknick was an active person who enjoyed bicycling, racquetball, waterskiing and yearly white water rafting trips with her family. Now, she cannot participate in any of those activities.
Women disproportionately suffer some of the most debilitating types of MSDs, such as carpal tunnel syndrome. This is not because women are more vulnerable to MSDs-but because a large number of women work in jobs associated with heavy lifting, awkward postures or repetitive motions. They hold a disproportionate number of jobs as nurses, cashiers, packagers, maids and house staff, assemblers and office workers. Consequently, women suffer 70 percent of the carpal tunnel syndrome cases and nearly 60 percent of the tendinitis cases that are serious enough to warrant time off work.
Workers should not have to suffer like this. Often solutions to mismatches between workers and their tasks are right at hand-simple, easy and inexpensive. But too many employers, especially small employers, have yet to realize the benefits of ergonomics and put protective programs in place. Fewer than 30 percent of employers with 20 or fewer employees have addressed ergonomics although more than 325,000 musculoskeletal disorders occur each year in smaller workplaces. In contrast, three-quarters of establishments with 500 or more employees have analyzed hazards and installed some engineering controls to decrease the risk of musculoskeletal disorders.
Ergonomics has an impact beyond workers. This discipline has its roots in improving efficiency and productivity. For years, many employers have known that good ergonomics is often good economics. And those employers have not only saved their workers from injury and potential misery, but they have saved millions of dollars in the process. The proposed rule draws on the experience of companies that have implemented successful programs.
Many businesses-both large and small-have already demonstrated the value of ergonomics programs. University Nursing Center, a small nursing care facility in Oklahoma, instituted an ergonomics program focused on back-injury prevention. University Nursing Center presented its program to staff through lectures, videos, handouts and demonstrations. The facility purchased mechanical lifts and made them available throughout the establishment. In 1997 and 1998, this practical ergonomics program cut the rate of work-related injuries by almost 75% from their 1996 level, and reduced the number of associated lost workdays by over 85 percent.
An Ohio lumberyard, the Weyerhaeuser Customer Service Center, invited an ergonomist from the State of Ohio's Workers' Compensation program to survey their site. Based on the recommendations they received, the lumberyard developed checklists for use by each of their employees in evaluating the ergonomic appropriateness of the facility's personal protective equipment, mechanical equipment and overall workplace. The lumberyard completely redesigned their office workstations in 1994. As of July of last year, they had not had any lost-time injuries since strengthening their program.
Two Maine New Balance shoe manufacturing facilities cut their workers' compensation costs from $1.2 million to $89,000 per year and reduced their lost and restricted workdays from 11,000 to 549 during a three-year period. New Balance achieved this by adding engineering controls, eliminating piecework, forming manufacturing teams, and rotating work activities.
Ultra Tool and Plastics, a small New York plastics products manufacturer, implemented an ergonomics program that cut back injuries by 70 percent and reduced associated lost workdays by 80 percent. Some solutions included: purchasing ergonomic chairs for production employees; providing back safety training; installing robot presses to eliminate the need for production employees to reach for parts; and making pallet jacks available for metal bins to allow height adjustments.
In 1996, Sysco Food Services of Houston, a food service distributor, had 201 injuries with 3,638 lost workdays. Sysco's back injuries accounted for almost 40 percent of the injuries and more than half the company's total workers' compensation costs. Most of the back injuries occurred in the warehouse and on delivery routes. Sysco formalized its ergonomics program under the leadership of its occupational health nurse. They instituted an early return to work policy. Workers were encouraged to report any symptoms. The company re-racked its warehouse and put brakes on the hand trucks. Sysco assessed its customers' locations for hazards during delivery and worked with its customers on improvements. Sysco also worked with its suppliers to get smaller bags, handles on packages, sturdier cardboard and lighter boxes. One year after implementing an ergonomics program, injuries dropped 25 percent, and the cost of workers' compensation cases was down by more than 45 percent.
Many solutions to ergonomic problems are common sense and inexpensive. OSHA has identified many solutions that cost less than $100. For example, workers at a packaging plant complained of leg and back fatigue. Their management installed footrests for standing posture workstations at a cost of $50 each. At a manual assembly plant, a worker's job involved installing a small part with needle-nosed pliers that put stress on the wrist. The supervisor suggested another tool-available in the tool crib-that would make the task easier and safer without costing an extra dime. Another company recognized the need to make changes to their packaging line workstations because workers developed musculoskeletal disorders. They simply added a belt conveyor to move packaged boxes away from the workstation-at a cost of $90.50 per worker. Employees in a poultry processing plant complained that ill-fitting protective gloves did not provide adequate protection. The company bought protective gloves from several manufacturers to provide a wide range of sizes for better fit. The cost was negligible. In many mechanical assembly companies, the use of hand tools injures small parts of workers' hands. Some companies have used tools padded with inexpensive materials to reduce injury, at minimal cost. These are only a few examples among many.
OSHA's proposed ergonomics program standard relies on a practical, flexible approach that reflects industry best practices and focuses on jobs where work-related MSDs occur, problems are severe, and solutions are generally understood. It would require general industry employers to address ergonomics-the fit between the worker and work-for manual handling and manufacturing production jobs, where we know the problems are most severe. And it requires other general industry employers to act when their employees experience work-related musculoskeletal disorders.
Under the proposal, about 1.6 million employers-those with manufacturing and manual handling jobs-would initially need to implement a basic ergonomics program. This means assigning someone to be responsible for ergonomics; providing information to employees on the risk of injuries, signs and symptoms to watch for, and the importance of reporting problems early; and setting up a way for employees to report signs and symptoms. Full programs for these and other general industry employers would be required only if one or more work-related MSDs actually occurred. But even if a worker is hurt, the employer need not implement a full program if a "Quick Fix" can take care of the problem. If the employer corrects a hazard within 90 days, verifies that the fix has eliminated the hazard, and has no additional MSDs in that job, no further action is necessary. In addition, a "grandfather" clause gives credit to firms that already have implemented ergonomics programs that satisfy the core elements of the standard.
Under OSHA's proposal, only 25 percent of those general industry companies that have fewer than 20 workers will be required to adopt basic ergonomics programs for one or more of their jobs involving manual handling or manufacturing production work. Over a 10-year period, about 900,000 of these small employers will need full programs because one or more of their workers will have experienced an MSD.
The OSHA proposal identifies six elements for a full ergonomics program: management leadership and employee participation; hazard information and reporting; job hazard analysis and control; training; MSD management; and program evaluation. OSHA intends that ergonomics programs be job-based, covering only the job where the risk of developing an MSD exists and any other jobs in the workplace that have the same work activities and conditions. Ergonomics programs need not cover all the jobs at the workplace. Nor are all MSDs covered. Rather, only MSDs caused by a work activity that is a core element of an employee's job or a significant part of her work day will trigger coverage.
The proposal would require that workers who experience covered MSDs receive a prompt response from their employer, including an evaluation of their injury and access to follow-up by a health care professional, if necessary. It also provides work restriction protection for workers when the employer or the employer's chosen health care professional has determined that restricted work is needed due to a work-related MSD.
Like other provisions of the proposal, OSHA obtained the views of a large number of stakeholders about the work restriction protection provision. For instance, during 1998, OSHA held stakeholder meetings throughout the country. In attendance at those meetings were representatives of the major insurance trade associations, including the Alliance of American Insurers, the American Insurance Association, and the American Insurance Services Group. These associations all have members who underwrite workers' compensation insurance. Also in attendance at these stakeholder meetings were individual workers' compensation insurance companies, including CIGNA, Liberty Mutual, and Travelers Insurance. Many of the insurance carriers mentioned the need for early reporting and return-to-work programs. In addition, I personally met on two different occasions with the International Association of Industrial Accident Boards and Commissions (IAIABC), once in June, 1999, and again in September, 1999. The IAIABC is an umbrella organization that represents the interests of a large number of state workers' compensation commissions. Our primary discussion during those meetings involved their concerns regarding the workability of the WRP provisions. The OSHA ergonomics staff has also met with IAIABC committees, and our staff continues to meet and receive comments from state workers' compensation administrators, most recently at the Western Governors Association meeting on April 12.
Work Restriction Protection (WRP)
I. What does WRP Require?
A number of OSHA's health standards include a provision to encourage employee participation in medical surveillance and medical management programs by requiring that, if it is necessary for health reasons to remove an employee from continued exposure to a hazard, the employee will be provided with temporary economic protection. In the proposed ergonomics standard, the provision is called work restriction protection, or WRP.
As defined in the proposed standard at section 1910.945, WRP means the maintenance of the earnings and other employment rights and benefits of employees who, based on the employer's decision or a health care professional's recommendation, are on temporary work restriction due to a work-related MSD. For employees who are on restricted work activity, WRP includes maintaining the wages and benefits they were receiving at the time they were placed on restricted work activity. For employees who have been removed from the workplace, WRP entails maintaining 90% of their net earnings and all of their benefits. Benefits include seniority, insurance programs, retirement benefits and savings plans.
The employer determines whether or not to place an injured employee on temporary work restriction or remove the employee from the workplace, but must follow the recommendation of the health care professional chosen by the employer if the health care professional determines that temporary work restrictions or removal from the workplace are needed to limit the employee's exposure to MSD hazards.
The obligation in the proposal to provide WRP ends as soon as one of the following occurs: (1) the employee is able to return to his or her regular job or a permanent new position; (2) the job is changed to eliminate the MSD hazard or reduce it to the extent it does not pose a risk of harm to the injured employee; or (3) six months have passed.
Finally, the amount of the employer's WRP payment may be reduced by income the employee receives from other sources, such as workers' compensation, unemployment insurance, or income from a job taken with another employer during the time an employee is on work restrictions.
II.Why is WRP Necessary?
A. Employee Reports of MSDs Trigger Coverage of the Standard.
Generally, OSHA standards are preventive in nature, requiring employers to take action before someone is hurt. In this proposal, however, most employers are not required to implement an ergonomics program until an employee reports a covered MSD. The effectiveness of this proposed standard, therefore, depends on the extent to which employees feel free to report injuries without penalty. If employees are reluctant to come forward and report MSDs in their early stages, serious MSD hazards in that job could go uncontrolled, thus potentially aggravating the MSD and placing every employee in that job at increased risk of harm.
B. Early Reporting Prevents Serious Injury
During OSHA's public outreach process, every stakeholder who commented on this subject agreed that early reporting of MSDs is critical to preventing disease and to protecting workers. As Dr. Robin Herbert, M.D. of the Mount Sinai Center for Occupational and
Environmental Medicine stated in her written testimony for the rulemaking:
Early reporting is critical to preventing tissue damage, ensuing pain and loss of function. When employees fear reporting and fear participating in MSD management, injuries become worse.
Stakeholders that currently have ergonomics programs have told us they achieved dramatic reductions in the number and severity of MSDs once they implemented an effective early reporting process. By starting the process of MSD management at an early stage, before tissue damage is severe or permanent, disabling injuries can be prevented.
Because the WRP provisions only apply after an injury occurs, there are similarities between these provisions and state workers' compensation benefits. The purpose of the WRP provisions, however, is fundamentally different. Workers' compensation is primarily intended to provide wage replacement and medical benefits to employees who have been injured at work; the WRP provisions are intended to prevent serious disability. WRP is designed to ensure that MSDs are addressed before injuries become more severe.
C. Many Employees Are Not Reporting MSDs
Despite the critical need for early reporting, there is evidence that, for a variety of reasons, as many as 50% of workers do not report their MSDs and other illnesses or seek workers' compensation for their injuries. The preamble contains a summary of 13 studies, covering hundreds of thousands of workers, that document this widespread under-reporting.
In a study of carpal tunnel syndrome (CTS) cases in a single county of California, for example, researchers compared the reported caseload of Santa Clara County health care providers with reports to the State. Of 3,413 cases of work-related CTS, only 71 had been reported to the State.
It is difficult to determine how much of such under-reporting results from non-compliance by employers, but a great deal is caused by the reluctance of the employees themselves. According to the authors of the 13 case studies, workers feared reprisal for reporting, they were discouraged by their supervisor and managers, they were deterred from filing for workers' compensation by the high rate of rejection of MSD claims, they wanted to avoid the "hassle" of filing workers' compensation claims, or they preferred to use their own health insurance rather than to use the workers' compensation system.
Some researchers have found there is good reason for employees to fear reprisal and to have low expectations of workers' compensation. In New York State, for example, the Mount Sinai Center for Occupational and Environmental Medicine has followed thousands of cases of employees diagnosed with work- related MSDs and found:
- Among hundreds of computer users diagnosed with upper extremity MSDs, 7% were fired when they reported an MSD, and 27% experienced a period when they received no income at all.
- Insurers routinely fight meritorious workers' compensation claims. Among employees diagnosed with Carpal Tunnel Syndrome, 79% had their claim denied initially by the insurer, even though 96% of these employees were ultimately found to have meritorious claims.
- Among hundreds of garment workers with MSDs, 87% reported going for some period of time with no income at all after reporting their MSD.
In the preamble to the proposed rule we cite recent research by Pransky, et al., who studied 98 workers employed by three industrial facilities. Fewer than 5% of the workers had officially reported a work-related illness or injury, though 50% had persistent work-related MSD problems and 30% had either lost work time or been given work restrictions because of their disorder. The reasons they gave for their failure to report their MSDs to their employer are instructive: 26% had concerns regarding loss of job, status, or overtime; 25% said they assumed pain or discomfort were part of the job; and 10% feared disciplinary action.
Unfortunately, according to Professor Emily Spieler of West Virginia University College of Law, in many states employees have only limited protection from retaliation if they are absent from work because of a work-related illness such as an MSD:
The majority of states do prohibit direct retaliation for the filing of a claim. On the other hand, the legal protection offered to workers under the workers' compensation and related state laws is limited; in most states, workers who are absent as a result of an occupational injury or disease can be discharged pursuant to a neutral absence control policy, even if the cause of the absence is an occupational injury or disease. (Spieler 1994) This means that a worker can be fired after being absent for longer than a specified period, even if s/he is collecting workers' compensation temporary total disability benefits.
Employees need assurance that reporting an MSD or accepting assignment to light duty work that allows them to recover from their MSD will not lead to reprisals, loss of pay, or reduced benefits. Because we recognize, as do several members of the Subcommittee, that the OSH Act's "whistle blower" provisions are inadequate to provide the protection and assurance employees need to fully exercise their rights, the Administration forwarded to Congress last year legislation to strengthen section 11(c) of the Act. We hope Congress will take action on this legislation. WRP would supplement existing OSH Act protections by protecting employees from economic loss when they report work-related MSDs.
III. Legal Authority for WRP
Section 6(b)(5) of the OSH Act directs OSHA to adopt the health standard that " most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity" if exposed to a hazard over a working lifetime. Section 3(8) describes an "occupational safety and health standard" as a "standard which requires the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."
As discussed earlier, OSHA has proposed that the ergonomics standard, to most effectively assure that employees will not "suffer material impairment of health or functional capacity," include provisions to overcome the current reluctance of employees to report MSDs at early stages, when tissue damage can be arrested and before other employees become injured.
Under a different name - medical removal protection (MRP) - OSHA has a number of times in the past included pay and benefit protection in its health standards as a way to encourage early reporting and participation in medical surveillance and management by injured employees. Standards that provide for MRP include Lead, Formaldehyde, Methylene Chloride, Methylenedianiline, Cadmium, and Benzene.
In United Steelworkers v. Marshall, 647 F2d 1189 (D.C. Cir. 1980), the U.S. Court of Appeals for the District of Columbia Circuit upheld OSHA's authority to require MRP in the Lead standard. The court of appeals held that (1) the OSH Act gives OSHA broad authority to issue MRP, and (2) OSHA's inclusion of MRP in the Lead standard was necessary and appropriate to protect the health of workers. OSHA demonstrated that lead disease is highly reversible if caught in early stages and provided evidence that employees would resist cooperating with the medical surveillance program absent assurance that they would have economic protection if removed from their jobs because of high blood-lead levels.
Arguments have been made that MRP in the Lead standard is fundamentally different from WRP in the ergonomics standards because WRP can be triggered by subjective signs and symptoms of MSDs such as pain and restricted movement, whereas MRP in Lead was triggered by objective measurements of lead in the blood of employees. When OSHA itself put forward a similar argument as a reason for not including MRP in the Formaldehyde standard, it was rejected by the court of appeals.
OSHA originally issued the Formaldehyde standard without MRP and argued that it was not appropriate because the nonspecificity of signs and symptoms made an accurate diagnosis of formaldehyde-induced irritation difficult, and the health effects from formaldehyde exposure resolved quickly.
In International Union v. Pendergrass, 878 F2d 389 (D.C. Cir. 1989), the U.S. Court of Appeals for the District of Columbia Circuit rejected OSHA's arguments and remanded the standard for reconsideration of the necessity of requiring MRP. The court stated that MRP was particularly appropriate in situations where employees recover quickly from the signs and symptoms of disease. On remand, OSHA amended the standard to include MRP.
In light of these decisions, OSHA included WRP in the ergonomics proposal. Under the proposal, employer coverage is triggered by employee reports of MSDs. The preamble to the proposal explains that the success of MSD management depends on early reporting, and that there is evidence that employees are, at present, reluctant to report MSDs because of the economic consequences. WRP is designed to counteract the present disinclination to early reporting.
The foregoing explanation of the WRP provision of the proposed rule is not, of course, the agency's final word on this matter. The Notice of Proposed Rulemaking specifically requested information and comments on alternative approaches that would achieve the same goals. OSHA has received approximately 7,000 written pre-hearing comments on the proposed rule and is in the midst of nine weeks of public hearings where more than 1000 witnesses have indicated their intention to testify. Many commenters and witnesses have addressed the WRP provision. The agency expects to receive additional written comments on WRP and other issues from hearing participants during the 90-day post-hearing comment period.
Only after all of this information is received and analyzed will OSHA make a decision about whether WRP should be retained, and if so, whether it should be modified. OSHA's decision will be based upon the evidence in the record, and consistent with the legal requirements established by the OSH Act.
Mr. Chairman, thank you for this opportunity to provide the Subcommittee with information on OSHA's ergonomics proposal and the reasoning behind the proposed WRP provision. I will be pleased to answer any questions the Subcommittee members may have.